President Barack Obama needs a fact check. His argument that people on the “No-Fly List” should be banned from buying a gun shows a fundamental misunderstanding—or rejection—of constitutional rights.
In response to the Islamic terrorist attack in San Bernardino, Obama and other Democrats have complained that, “right now, people on the No-Fly List can walk into a store and buy a gun. That is insane.”
The president is referring to a list the Transportation Security Administration (TSA) maintains of those who are not allowed to board airplanes in the United States.
The comparison is shocking. No one has a constitutional right to board an airplane.
For over a century, most recently reaffirmed in its 1999 case Saenz v. Roe, the Supreme Court has recognized the constitutional right to interstate travel. But you can drive, ride, or even walk across state lines (though the latter may take a while). No one has a constitutional right to board a plane to travel.
For that matter, even driving a car is a privilege granted by the state, not a constitutional right.
By contrast, all law-abiding and peaceable adult American citizens have a Second Amendment right to keep and bear firearms.
The Supreme Court has even recently—as in 2010 in McDonald v. Chicago—recognized that owning a gun is a fundamental right, on the same level as rights to free speech, free exercise of religion, being free from unreasonable searches and seizures, avoiding self-incrimination, and choosing a jury trial when you are charged with a serious crime.
The Constitution allows the government to infringe upon a person’s freedom, but only if certain conditions are satisfied. The Fifth Amendment provides that, “No person shall … be deprived of life, liberty, or property, without due process of law.”
As the Supreme Court held in an important line of cases, this Due Process Clause requires that the government must provide a person a meaningful hearing before the government deprives that person of his rights.
If the situation is so urgent that a hearing is not feasible beforehand (called a “predeprivation hearing”), then—and only then—does the Due Process Clause allow the government to offer an “adequate postdeprivation hearing” after the fact to restore what was taken.
TSA’s No Fly List is developed by the Terrorist Screening Center (TSC). The TSC does so with no hearings and no notice, and no opportunity for a person to assert his trustworthiness before being placed on the list.
While a person can challenge being placed on the No Fly List, it is a cumbersome administrative process, and it can take years for who someone who should never have been put on the list to be removed.
Fundamental constitutional rights cannot be denied for years at a time without due process. So unless Obama wants to call for a federal law under which people receive a hearing before a judge before being placed on the No-Fly List, with the opportunity to bring in lawyers and have an evidentiary hearing, then he cannot equate purchasing a firearm with being able to board an airplane.
The president’s statements of outrage represent one of two things. One is a complete disrespect for Americans’ fundamental rights, particularly Second Amendment.
The other is that Obama is perfectly aware of why buying a gun and being on the No Fly List cannot be compared, but doesn’t care so long as he can score cheap political points at the expense of America’s 90-million-plus gun owners.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.